RUKMINI VISHWANATH SHENDGE Vs. SHRINIWAS TULJARAM BURUDKAR

JUDGEMENT

(1.) The petitioner has challenged the process under Section 138 of the Negotiable Instruments Act on a complaint filed by the respondent No. 1.

(2.) The main contention of Mr. Gangal, the learned Counsel for the petitioner, is that two of the five vital ingredients of the offence under Section 138 as laid down by the Supreme Court in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., 2000 2 SCC 745 have not been followed, viz., ingredients Nos. (iii) and (v). The five ingredients laid down by the apex Court in paragraph 10 in Kusum Ingots & Alloys Ltd's case read as follows:

(3.) According to Mr. Gangal, the respondent No. 1 did not allege ingredient No. (iii) above by stating that the amount of money standing to the credit of the account is sufficient to honour the cheque. On the contrary, the respondent No. 1 averred in the complaint that the petitioner- accused ordered the Bank to stop payment of the cheque and that is why the respondent-complainant did not receive the money. According to Mr. Gangal, the averments that the accused directed the Bank to stop payment of the cheque does not constitute an offence since what constitutes an offence under Section 138 of the Act, it is the return of a cheque by the Bank, unpaid, because the funds of the accused are insufficient to honour the cheque. The second contention of Mr. Gangal is that the respondent No. 1 has not averred in the complaint that the petitioner-accused has failed to make payment of the amount of money demanded within 15 days of receipt of the notice.